Child Support Obligations in Ontario
When both parents are living and raising their child together, the child’s expenses are usually shared and this arrangement can be formalised in writing or informally agreed through practice. On separation/divorce however, or if they have never lived and raised the child together, then their financial responsibilities can no longer operate in an informal manner. The legislation that guides child support provincially in Ontario is the Family Law Act and across Canada, the Divorce Act. If the parents are separating then the Family Law Act is used, and if they are divorcing then the Divorce Act is applicable.
What is Child Support?
Child support payments come in two forms. The first is basic child support, and the other is special and extraordinary expenses, otherwise known as Section 7 expenses in reference to the law that governs them, Section 7 of the Divorce Act.
Basic child support is made up of the basic expenses and needs of the child. These include the costs of providing food, clothing, shelter. In other words, anything that goes into the basic care of the child. The main considerations that judges and courts look to when determining the amount are the incomes of both parents, how many children of the marriage are entitled to child support, and what are the needs of the child.
Special and extraordinary expenses are payments for costs that not every family will usually incur. The courts will decide if the costs that the parent takes on when engaging in these expenses should be supported by the other parent. Examples of such expenses include: medical and dental premiums, health expenses, extra child care expenses because of a parent’s employment, disability or education, post-secondary expenses and expenses for extracurricular activities.
The factors that the courts will consider when imposing Section 7 expenses are the best interests of the child, if such expenses are beneficial to the child’s development and learning, and the means of the parents and the types of payments the parents engaged in pre-separation.
A Right to Child Support?
One of the most important aspects of child support is that it is not a right of the custodial parent to receive it. The right to child support belongs to the child. While it is one parent paying the other child support, these payments are made for the benefit of the child. Child support is not something the parents can contract out of, nor can they voluntarily agree to not pay child support to a parent that is entitled to it or pay less than the minimal amount allowed.
So who is actually entitled to receive child support? Contrary to popular belief, the gender of the spouse is not important. One of the most significant factors is which parent the child resides with. There is a preliminary threshold question of whether a child spends 40% of their time with a parent. If the parent does not care for the child 40% of the time, then there is an automatic obligation to provide child support to the other party. If both parents spend 40% or more time with the child then there may not be a child support obligation, or the amount that a parent is required to pay is less than in other circumstances.
Who pays Child Support?
Biological parents are obligated to provide child support, but the obligation can extend to step-parents. If a step-parent has taken on the role of a parent and has an intention to treat the child like their own, this can lead to a child support obligation even if the step-parent and the biological parent were to separate or divorce. Lawyers and judges will look at the relationship between the step-parent and the child, how the child was treated and cared for, and if there is an ongoing relationship in determining if there is a child support obligation.
Child Support obligations for over-18s?
Usually, child support must be provided until the child reaches the age of majority, or 18. At that point, child support can be discontinued. However, there are a number of circumstances that can give rise to continued child support payments past the age of 18.
If a child has special needs, parents may have additional support obligations. More support is required for these children even if the child is over 18. The courts will take into account a variety of factors including the aid the parent receives from other sources, such as tax credits, subsidies, or benefits.
A child’s post-secondary education can also give rise to continued support obligations where the child is a dependent of the parents. It is not mandatory however and a judge may consider the following factors:
- the best interest of the child
- the payor parent’s ability to pay
- the financial situation of both parents
- the child’s age when they are attending post-secondary school and
- the performance of the child.
Calculating Child Support
The main tool that judges and lawyers use to calculate child support is a federal government initiative named the Federal Child Support Guidelines (otherwise known as the Guidelines). The Guidelines are a formula that allow for an estimate of what the child support amount should be, and lawyers and judges take significant consideration of this calculation.
A judge does however ultimately have discretion when calculating the child support amount. The Guidelines calculation may have not taken into consideration or given enough weight to some factors that affect the payor parent or the recipient parent. The roles of a judge and a lawyer are to analyze the full breadth of the situation to ensure that a child support order is fair and reasonable taking into account all the circumstances of the case.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.